Page - 23 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

23Introduction Who Does What? Challenges and Demands of Canadian Federalism Good governance is needed to prepare for and respond to a pandemic, both in the initial stages and as evidence grows on the efficacy of differ- ent preventative measures. Simply put, good governance requires clear lines of responsibility about which orders of government and other institutions or actors will do what and when. Particularly in the early part of a pandemic, there is little time for the usual rhythm of democ- racy and thus clear lines of responsibility are even more essential. In Canada, good governance is complicated by our disaggre- gated federation and the politicization of jurisdictional issues. For example, health is often portrayed as being solely a matter of provin- cial jurisdiction. But the Supreme Court of Canada has declared on multiple occasions that health is in fact a matter of shared jurisdiction.96 Which order of government has jurisdiction depends on the context. In this section, we explore how dysfunctionality in federal-provincial relations was laid bare during the SARS outbreak in 2003: the federal government could not report key data about the outbreak to the WHO because Ontario’s provincial government either could not or would not supply this data, resulting in the WHO issuing a travel ban. SARS turned out to be a mere warm-up for COVID-19 in both scale and scope. Post-SARS, several significant changes were made to public health governance, notably the creation of the Public Health Agency of Canada (PHAC), and pan-Canadian committees sup- porting better coordination and sharing of data.97 As COVID-19 has unfolded, Canada’s performance was strengthened by these reforms; yet serious vulnerabilities remain. First, the federal government in Canada—unlike other coun- tries—has not declared COVID-19 a national emergency. Some see this decision as appropriately respectful of provincial jurisdiction. However, a failure to declare a national emergency also reveals a vul- nerability in governance at the federal level. The Emergencies  Act98 is 96. RJR-MacDonald  Inc  v  Canada  (AG), 1995 3 SCR 199 at para 32, 127 DLR (4th) 1; Eldridge  v  British  Columbia  (AG), 1997 3 SCR 624 at para 24-25, 151 DLR (4th) 677; Reference re Assisted Human Reproduction Act, 2010 SCC 61 at para 57; Canada (AG)  v  PHS  Community  Services  Society, 2011 SCC 44 at paras 67-70. For a full dis- cussion, see Colleen M Flood, William Lahey & Bryan Thomas, “Federalism and Health Care in Canada: A Troubled Romance?” in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The  Oxford  Handbook  of  the  Canadian  Constitution (New York: Oxford University Press, 2017). 97. Mel Cappe, this volume, Chapter B-2. 98. Emergencies  Act, RSC 1985, c 22 (4th Supp.)